A decision of the U.S. Court of Appeals for the 10th Circuit highlights the power dynamics around rights to collect and share data. It marks an important victory for environmental activists, and should also be of interest to all those who engage in citizen science, as well as community-based environmental monitoring.

The case arose after the Wyoming legislature passed a law titled Trespassing to Unlawfully Collect Resource Data that imposed civil and criminal liability on any person who crossed over private land in order to “access adjacent or proximate land where he collects resource data.” The statutory definitions of resource data included all kinds of data gathering activity from taking notes to photographing wildlife or taking samples of soil or water.

The backstory to the legislation involved efforts by environmental activists with the Western Watersheds Project to document the impact of cattle grazing on water quality, and to push for limits on grazing on public lands. These efforts were opposed by cattle ranchers, who apparently carry enough clout to push the legislature to enact such a law. A predecessor statute in 2015, titled Trespassing to Collect Data, created civil and criminal liability for collecting data on “open lands”. After the constitutionality of the 2015 law was challenged, it was amended to prohibit crossing private land without permission in order to collect data on “adjacent or proximate land” (which might be public land). It was this amended version that was considered by the appellate court.

The issue before the Court was not whether there was a broad right to collect resource data on either public or private land. Rather, it was whether the state, by creating new civil and criminal trespass penalties for those who crossed private land without permission in order to collect data on public land, violated the free speech rights of the data collectors. The plaintiffs’ argument was essentially that although there were already penalties for trespass on private land, the statute created additional penalties for those who trespassed on private land for the purpose of collecting data on public land. Thus, the court framed the issue as “not whether trespassing is protected conduct, but whether the act of collecting resource data on public lands qualifies as protected speech.” The court noted that the prohibited acts under the law involved “collecting water samples, taking handwritten notes about habitat conditions, making an audio recording of one’s observation of vegetation, or photographing animals”, so long as location data was also included.

The Court noted that a number of federal and state environmental statutes and regulations provided for public submission of environmental data as part of assessment and decision-making processes. The plaintiffs argued that a law restricting their ability to gather environmental data inhibited their ability to participate in such processes, thus limiting their freedom of speech. The Court agreed, noting that the First Amendment extends to the “creation” of speech. The Court observed that “An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter”. The Court also found that the taking of samples, though “somewhat further afield of pure speech”, was protected. In this case, the samples were characterized by the Court as “information plaintiffs need to engage in environmental advocacy”. The Court also observed that the plaintiffs used the data they collected in advocacy activities, and that this type of political engagement was at the core of the First Amendment protection.

The Court does caution that there is no general “unrestrained right to gather information”. As a result, laws that, by banning activities incidentally prevent the ability to gather information about those activities would not run afoul of the First Amendment. In this way, a general prohibition on trespass does not offend the First Amendment, even if it means that someone would be equally barred from trespassing to gather information. What was problematic here was that the laws created new penalties that specifically applied to trespass for data gathering activities.

Although the legislation in this case might seem to be an outlier product of an aggressive stakeholder lobby of government, the issues it raises have a broader significance. Control over data, access to data and even the ability to create data are all crucially important in our data-driven society. My ongoing research explores issues of ownership, control and access to data – expect to see more posts on these topics over the course of the year.

The U.S has cleared the way for the use of citizen science by federal government agencies and departments in a new law titled the American Competitiveness and Innovation Act (ACIA) (awaiting presidential signature).

The ACIA as a whole should be of interest to Canadians, as it lays out the principles for how the National Science Foundation (NSF) in the United States should approach its mandate to support scientific research. Earlier bills failed to reach acceptable compromises; some of these would have restricted types of scientific research funded by the NSF to specific sectors. This has echoes of the controversial choices in Canada under the previous government to focus on applied rather than basic scientific research. The American Competitiveness and Innovation Act has moved away from this narrow approach and sets out two main criteria for funding scientific research:intellectual merit and broader public impacts.

The ACIA contains a distinct section titled the Crowdsourcing and Citizen Science Act (CCSA) which paves the way for the use by government agencies and departments of scientific research practices based upon distributed public participation. The CCSA defines citizen science as “a form of open collaboration in which individuals or organizations participate voluntarily in the scientific process in various ways.” (§402(3)(c)(1)) The level of participation can vary, and may include public participation in the development of research questions or in project design, in conducting research, in collecting, analyzing or interpreting data, in developing technologies and applications, in making discoveries and in solving problems. In its preamble, the CCSA acknowledges some of the unique benefits of crowd-sourced research, including cost-effectiveness, providing hands-on learning opportunities, and encouraging greater citizen engagement.

The CCSA specifically empowers the heads of federal science agencies to make use of crowdsourcing and citizen science to conduct research projects that will advance their missions. It enables the use of volunteers in research – something that might otherwise become entangled in red tape. The Act also directs agencies to draft appropriate policies to govern participant consent, and to address “privacy, intellectual property, data ownership, compensation, service, program and other terms of use to the participant in a clear and reasonable manner.” (§402(4))

Significantly, the CCSA also mandates that any data collected through citizen science research enabled under the legislation should be made available to the public as open data in a machine-readable format unless to do so is against the law. It also requires the agency to provide notifications to the public about the expected use of the data, any ownership issues relating to the data, and how the data will be made available to the public. (I note that these issues are addressed in my co-authored guide Managing Intellectual Property Rights in Citizen Science published by the Wilson Center Commons Lab.) The statute also encourages agencies, where possible, to make any technologies, applications or code that are developed as part of the project available to the public. This legislated commitment to open research data and open source technology is an important public policy statement.

One barrier to the use of crowdsourcing and citizen science in the government context is the fear of liability within the risk-averse culture of governments. The CCSA addresses this by proving that participants in citizen science projects enabled under the statute agree to assume all risks of participation, and to waive any claims of liability against the federal government or its agencies.

The CCSA permits federal agencies to partner with community groups, other government agencies, or the private sector for the purposes of carrying out citizen science research. After a two-year grace period, the statute also requires the filing of reports on any citizen science or crowd-sourcing projects carried out under the CCSA, and contains detailed requirements for the content of any such report.

The inclusion in this science and innovation bill of provisions that are specifically designed to facilitate and encourage the use of citizen science by governments is a significant development. It is one that should be of interest to a federal government in Canada that is attempting to carve out space for itself as open, pro-science and keen to engage citizens. Citizen science has significant potential in many fields of scientific research; it also brings with it benefits in terms of education, citizen engagement, and community development.

A 2016 European Commission report titled Survey report: data management in Citizen Science projects provides interesting insights into how such projects manage the data they collect. Proper management is, of course, essential to ensure that the collected data can be used and reused by project leaders as well as by other downstream users. It is relevant as well to the protection of the privacy of citizen participants. The authors of this report surveyed a large number of citizen science projects. From the 121 responses received they distilled findings that explore the diversity of the citizen science projects, and that reveal a troubling lack of thorough data management practices. A significant shortcoming for many projects was the lack of appropriate data licences to govern reuse of either raw or aggregate data collected.

There has been growing pressure on those carrying out research using public resources to make the fruits of the research – including the research data – publicly available for consultation, verification or reuse. But doing so is not as simple as a binary open/closed choice. There are a number of different questions that researchers must address: Should the raw data be made open or only the aggregate data? Should it be immediately available or available only after an embargo period? Is all data suitable for release or should some be protected for public policy reasons (such as protecting privacy)? And what, if any, terms and conditions should be imposed on reuse?

The authors of the EC report, Sven Schade and Chrysi Tsinaraki, found that overall there was a relatively high level of data sharing from citizen science projects. Significantly, 38% of the respondents to their survey provided access to their raw data; 37% provided access to aggregate data and 30% provided access to both. One interesting observation in this respect was that 68% of those respondents who provided access to their raw data also included within this dataset personal identifiers of citizen contributors to the project. Such data might be advertently collected, as where individuals provide personal information with their data uploads. In some cases, the scope of personal information might be significant. Contributions to a project might include geolocation information and geodemographic details. Schade and Tsinaraki asked respondents about their practices when it came to obtaining informed consent to data collection from project participants; they found that 25% of respondents did not obtain such consent whereas 53% relied upon a generic terms of use document to obtain consent. It was not entirely clear whether the consent being sought related to privacy issues or to obtaining any necessary rights to use or disseminate the data being collected (which might, for example, include copyright protected photographs). In any event, the results of the survey suggest that there is a significant lack of attention to both privacy and IP rights issues in citizen science projects.

On the issue of data licensing, Schade and Tsinaraki found that the conditions imposed on reuse by different projects varied. A majority of those who made data available believed that the data was in the public domain, while others imposed conditions such as non-commercial or share-alike restrictions. When asked which license they used to achieve these goals, 32 out of 56 respondents indicated that they used one of the commonly available template licences such as Creative Commons or Open Data Commons. A surprising number of respondents indicated that no particular licence was used. While data released in this way might be presumed to be “open”, the usefulness of the data might well be hampered by a lack of clarity regarding the scope of permitted reuse.

In addition to providing access to data, the authors of the Report asked whether citizen science researchers allowed open access to research results (presumably in the form of published papers and other output).While the overwhelming majority of projects indicated that they used open access options (ranging from public domain dedication to open access with conditions), Schade and Tsinaraki also found that 14 of the projects they considered used licences with terms that were not consistent with the reuse conditions that the researchers had identified. Clearly there is a need for greater support for projects in developing or choosing appropriate licences.

Although many of the projects indicated that they provided access to their data, the duration of that access was less certain. The authors found that 42% of projects intended to guarantee access to their data only within the lifespan of the project. The authors also found that 40% of projects that provide data access do not provide comprehensive metadata along with the data. This would certainly limit the value of the data for reuse. Both these issues are important in the context of citizen science projects, which are often granted-funded and temporally-limited. The ability to archive and preserve research data and to make it available for meaningful access and reuse should be part of researchers’data management plans, and is something which should be supported by research institutions and funding agencies.

Overall, the Report provides data that suggests that the burgeoning field of citizen science needs more support when it comes to all aspects of data management. Proper data management practices will help citizen science researchers to meet their own objectives, to share their data effectively and appropriately, and to protect the rights and interests of participants.

Note: In 2015 I drafted a report, with Haewon Chung, for the Wilson Center Commons Lab titled Managing Intellectual Property Rights in Citizen Science. This report addresses many licensing issues related to the collection, sharing and reuse of citizen science data and outputs. It is available under a Creative Commons Licence.

Citizen science is the name given to a kind of crowd-sourced public participatory scientific research in which professional researchers benefit from the distributed input of members of the public. Citizen science projects may include community-based research (such as testing air or water quality over a period of time), or may involve the public in identifying objects from satellite images or videos, observing and recording data, or even transcribing hand written notes or records from previous centuries. Some well-known citizen science projects include eBird, Eyewire, FoldIt, Notes from Nature, and Galaxy Zoo. Zooniverse offers a portal to a vast array of different citizen science projects. The range and quantity of citizen science experiences that are now available to interested members of the public are a testament both to the curiosity and engagement of volunteers as well as to the technologies that now enable this massive and distributed engagement.

Scientific research of all kinds – whether conventional or involving public participation – leads inevitably to the generation of intellectual property (IP). This may be in the form of patentable inventions, confidential information or copyright protected works. Intellectual property rights are relevant to the commercialization, exploitation, publication and sharing of research. They are important to the researchers, their employers, their funders, and to the research community. To a growing extent, they are of interest to the broader public – particularly where that public has been engaged in the research through citizen science.

What IP rights may arise in citizen science, how they do so, and in what circumstances, are all issues dealt with by myself and co-author Haewon Chung in a paper released in December 2015 by the Commons Lab of the Wilson Center for International Scholars in Washington, D.C. Titled Best Practices for Managing Intellectual Property Rights in Citizen Science,this paper is a guide for both citizen science researchers and participants. It covers topics such as the reasons why IP rights should be taken into account in citizen science, the types of rights that are relevant, how they might arise, and how they can be managed. We provide an explanation of licensing, giving specific examples and even parse license terms. The paper concludes with a discussion of best practices for researchers and a checklist for citizen science participants.

Our goal in preparing this report was to raise awareness of IP issues, and to help researchers think through IP issues in the design of their projects so that they can achieve their objectives without unpleasant surprises down the road. These unpleasant surprises might include realizing too late that the necessary rights to publish photographs or other materials contributed by participants have not been obtained; that commitments to project funders preclude the anticipated sharing of research results with participants; or that the name chosen for a highly successful project infringes the trademark rights of others. We also raise issues from participant perspectives: What is the difference between a transfer of IP rights in contributed photos or video and a non-exclusive license with respect to the same material? Should participants expect that research data and related publications will be made available under open licenses in exchange for their participation? When and how are participant contributions to be acknowledged in any research outputs of the project?

In addition to these issues, we consider the diverse IP interests that may be at play in citizen science projects, including those of researchers, their institutions, funders, participants, third party platform hosts, and the broader public. As citizen science grows in popularity, and as the scope, type and variety of projects also expands, so too will the IP issues. We hope that our research will contribute to a greater understanding of these issues and to the complex array of relationships in which they arise.

I am just back from the inaugural conference of the newly formed Citizen Science Association. If there were any doubt about the explosion of interest in citizen science, this conference, with its packed agenda and 600 registered attendees would lay it to rest.

Citizen science is a term whose definitional boundaries are constantly being expanded.It is sometimes also called public participatory scientific research, and broadly interpreted it could reach so far as to include open innovation. Like many other forms of collaborative and co-creative engagement, citizen science involves harnessing the labour or ingenuity of the crowd with a view to advancing scientific knowledge. Iconic citizen science projects range from eBird (involving the public in reporting and recording bird sightings), GalaxyZoo (engaging the public in classifying distant galaxies) and Nature’s Notebook (which asks the public to help track seasonal changes). Citizen science projects also stray into the biomedical realm and can cross commercial/non-commercial lines. PatientsLikeMe offers a forum for individuals to share information about their illnesses or medical conditions with researchers and with others with the same affliction. 23andMe provides individuals with information about their DNA (which participants contribute), and SNPedia provides individuals with resources to help them in interpreting their own DNA. But in addition to these more well-known projects, are thousands of others, on large and small scales across a range of scientific fields, and engaging different sectors of the public in a very broad range of activities and for a similarly broad spectrum of objectives.

My own interest in citizen science relates to the legal and ethical issues it raises. Not surprisingly, there are significant privacy issues that may be raised by various citizen science projects – and not just those in the biomedical sphere. There may also be interesting liability issues – what responsibility is engaged by researchers who invite volunteers to hike treacherous mountain trails to find and record data about elusive plant or animal species? Currently, my work is on intellectual property issues. Timed to coincide with the inaugural CitSci 2015 conference was the release of a paper I co-authored with Haewon Chung on intellectual property issues as between researchers and participants in citizen science. This paper was commissioned by the Woodrow Wilson Center for International Scholars Commons Lab, and we are continuing to expand our work in this area with the support of the Wilson Center.

Our paper invites participants and researchers to think about intellectual property in the context of citizen science, in large part because IP issues are so fundamental to the ability of researchers, participants, and downstream users to ultimately access, use and/or disseminate research results. Relationships between researchers and participants are not the only ones of importance in citizen science – we will expand beyond these in our future work. But these relationships are nonetheless fundamentally important in citizen science. To the extent that intellectual property law is about both the relationship of authors to their works and about the relationship of authors and others in relation to those works, these issues should be part of the design of citizen science projects.

Our paper, which is meant primarily for an audience of citizen science participants and researchers, develops a typology of citizen science projects from an IP point of view. We group citizen science projects into 4 broad categories defined by the type of contribution expected of participants. In some cases the nature and degree of participation makes it unlikely that participants will have any IP claims in their contributions to the project; in other cases, participants are regularly invited to contribute materials in which they may hold rights. We suggest that researchers think about these issues before launching their project with a view to avoiding complications later on, when they try to publish their research, decide to make their data fully open online, or make other dissemination plans. In some cases, the level of involvement of participants in problem-solving or data manipulation may also raise issues about their contribution to an invention that the researchers eventually seek to patent.

Identifying the IP issues is a first step – addressing them is also important. There are many different ways (from assignment of right to licensing) in which the IP rights of contributors can be addressed. Some solutions may be more appropriate than others, depending upon the ultimate goals of the project. In choosing a solution, researchers and project designers should think of the big picture: what do they need to do with their research output? Are there ethical obligations to open citizen science data, or to share back with the participant community? Do they have particular commitments to funders or to their institutions? Even if research data is made open, are there reasons to place restrictions on how the data is used by downstream users? These are important issues which have both a legal and an ethical dimension. They are part of our ongoing work in this area.